ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
DCX-CHOL Enterprises, Inc. ) ASBCA No. 60782
)
Under Contract Nos. SPM4A4-11-V-4143 )
SPM4A6-11-C-008 l )
APPEARANCE FOR THE APPELLANT: Mr. Brian Gamberg
Executive Vice President
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Edward R. Murray, Esq.
Elan D. Taylor, Esq.
Trial Attorneys
DLA Aviation
Richmond, VA
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Appellant, DCX-CHOL Enterprises, Inc. (DCX-CHOL), appealed from a
government demand for payment of $59,590 for alleged defective cable assemblies. The
government rescinded the demand for payment and requested dismissal of this appeal
for lack of jurisdiction. DCX-CHOL failed to respond to the government's motion. We
dismiss this appeal as moot.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. By letters dated 26 July 2016, the contracting officer (CO) notified DCX-CHOL
that there were two deficiencies with the cable assemblies DCX-CHOL provided under
order SPM4A4-l l-V-4143 and eleven deficiencies with the cable assemblies DCX-CHOL
provided under order SPM4A6-l l-C-008 l (gov't mot., exs. B, C).
2. By letter dated 23 August 2016, the CO made a demand for payment in the
amount of $59,590 for the cable assemblies deficiencies listed in the letters dated
26 July 2016 (gov't mot., ex. D).
3. On 23 August 2016, DCX-CHOL filed its appeal from the demand for payment.
4. By letter dated 16 September 2016, the CO rescinded the demand for
payment and stated that "we no longer intend to pursue this claim" and that the letter
does not "require any further action from DCX-Chol" (gov't mot., ex. E). The CO
requested DCX-CHOL to withdraw its appeal but stated that rescission was not
contingent on withdrawal of the appeal (id.).
DISCUSSION
When a CO unequivocally rescinds a government claim and the final decision
asserting that claim, with no evidence that action was taken in bad faith, that voluntary
action moots the appeal and leaves us without jurisdiction to entertain the appeal any
further. Combat Support Associates, ASBCA Nos. 58945, 58946, 16-1 BCA ii 36,288
at 176,973 (dismissing an appeal as moot where the CO rescinded the final decisions
asserting the government claims); KAMP Systems, Inc., ASBCA No. 54253, 09-2 BCA
ii 34, 196 at 168,995 (the CO stated there was no intention to issue a new decision).
That is the case here. The CO unequivocally rescinded the demand for payment
that is the subject of this appeal and stated that the government no longer intends to
pursue the matter (SOF ii 4). While the CO included language asking DCX-CHOL to
withdraw its appeal, the action to rescind the demand for payment was not contingent
on withdrawal of the appeal (id.). There is no evidence that the rescission was taken in
bad faith. Therefore, the CO's voluntary action moots the appeal and leaves us with
nothing to adjudicate.
CONCLUSION
For these reasons, the appeal is dismissed as moot.
Dated: 15 March 2017
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
MA RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
2
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 60782, Appeal ofDCX-CHOL
Enterprises, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
3